TMI Blog1996 (7) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... r compensation was resisted by the appellant (owner of the vehicle) contending that when the accident took place, the bus was driven by Gurbachan Singh who was employed by him as a driver and who had the licence to drive the bus in question and as such the respondent Insurance Company was liable to pay the compensation. The Insurance Company, however, took the defence that as the bus was being driven by respondent No.4, Rajinder Pal Singh, cleaner/ conductor of the bus who was not holding the driving licence and, therefore, the Insurance Company cannot be held liable to pay compensation because under the terms of the policy only person holding a driving licence could have driven the bus in question. The Tribunal on consideration of materials on rash and negligent driving of the bus by respondent No.4 who did not have a driving licence. On that finding the Tribunal discharged the liability of the Insurance Company and directed the owner and the driver i.e. appellant and respondent No.4 to pay an amount of ₹ 66,000/- along with rate of 6% per annum to the claimants as compensation. One appeal was filed on behalf of the claimants for enhancement of the amount of the compensat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The master may even be responsible of the servant impliedly, and not expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonably foreseeable that the third party will attempt to drive it, at least if the driver retains notional control of the vehicle. It has been said in Halsbury s Laws of England, Fourth Edn., Vol.16, paragraph 739: Where the act which the employee is expressly authorised to do is lawful, the employer is nevertheless responsible for the manner in which the employee executes his authority. If, therefore, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape lability on the ground that he did not actually authorise the particular manner in which the act was done, or even on the, ground that the employee was acting on his own behalf and not on that of his employer. In that connection reference can be made to the cases of London County Council v. Cattermoles (Garages) Ltd., (1953) 2 All ER 582, Ilkiw v. Samuels (1963) 2 All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted the respondent to drive the vehicle that night. The facts of the present case disclose and demonstrate that an authorised act was being done in an unauthorised manner. The accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected with in the course of employment - it was not an independent act for a purpose or business which had no nexus or connection with the business of the State Government so as to absolve the appellant-State from the liability. In the case of Pushpabai Purshottam Udeshi vs. Banjit Ginning and Pressing Co.(P) Ltd., (1977) 2 SCC 745, it was said: ...we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term in course or the employment as ordinarily understood. We have referred to Sitaram Motilal Kalal v Santanuprasad Jaishankar Bhatt where this Court accepted the law laid down by Lord Denning in Ormrod v. Crosville Motor Services Ltd. that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the dri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tort compensation, it had to be established by the claimants that the accident was due to the fault of the person causing injury or damage. Now from different judicial pronouncements, it shall appear that even in western countries fault is being read and assumed as someone s negligence or carelessness. The Indian Parliament, being conscious of the magnitude of the plight the victims of the accidents, have introduced several beneficial provisions to protect the interest of the claimants and to enable them to claim compensation from the owner or the insurance company in connection with the accident. In the Motor Vehicles Act,1939 Chapter VII-A was introduced by the Motor vehicles (Amendment) Act, 1982. Sub-section (1) of Section 92-A provides that where the death or permanent disablement of any person has resulted from an accident, the owner of the vehicle shall be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said section. Sub-section (2) specifies a fixed amount for such liability without fault. In view of subsection (3), the claimant is not required to plead and establish that the death or permanent disablement in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It can be said that Parliament realised the grave injustice and injury which was being caused to the heirs and legal representatives of the victims who died in accidents by rejecting their claim petitions only on the ground of limitation. An other amendment which can be referred to in this connection, which has been introduced by the aforesaid Amendment Act of 1994 as sub-section (6) to Section 158 provides: As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer. Because of sub-section (6) of Section 158 of the Act, the officer incharge of the police station is enjoined to forward a copy of information/report regarding the accid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have voided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured- payable thereunder, as if he were the judgment debtor, in respect of the liability. (2) No sum shall be payable by an insurer under sub section (1) in respect of any judgment unless before or after the commencement of the proceedings, in which the judgment is given the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal and an insurer to whom notice of the bringing of any such proceeding is so given shall be entitled to be made a party thereto and to defend. the action on any of the following grounds, namely: (b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely: (i) ............ (a) to (d) ........ (ii) a condition excluding driving by a named person or persons or by any person who this not duly licensed, or by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to keep the promise. To examine the correctness of the aforesaid view this appeal was referred to a three Judges Bench, because on behalf of the insurance company, a stand was taken that when Section 96(2)(b)(ii) has provided that the insurer shall be entitled to defend the action on the ground that there has been breach of a specified condition to the policy i.e. the vehicle should not be driven by a person who is not duly licensed, then the insurance company cannot be held to be liable to indemnify the owner of the vehicle. In other words, once there has been a contravention of the condition prescribed in sub-section (2)(b)(ii) of Section 96, the person insured shall not be entitled to the benefit of subsection (1) of Section 96. According to us, Section 96(2)(b)(ii) should not be interpreted in a technical manner. Sub-section (2) of Section 96 only enables the insurance company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. This bar on face of it operates on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need not be pointed out that the whole concept of getting the Vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realization of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known. This Court in the case of Kashiram Yadav and Another. vs. Oriental Fire and General Insurance Co. and Others, (1989) 4 SCC 128 reiterataed the views expressed in Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan (supra) while referring to that case it was said: There the facts found were quite different. The vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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